Two Brookline fire lieutenants have filed a class action lawsuit claiming the town failed to pay them overtime as required by the Fair Labor Standards Act. Lieutenants Brian Bergeron and Paul Trahon filed suit in US District Court for the District of Massachusetts on behalf of 150 similarly situated firefighters.
The suit claims the town improperly calculated their regular rate by not including a wage augment for an Active Shooter/Hostile Event Response (ASHER) stipend; failed to pay them for 3 hours of each 24-hour shift; miscalculated their-hours worked during substitutions; failed to include certain extra hours worked; failed to maintain records; and failed to pay overtime in a timely manner. Quoting from the complaint:
- Pursuant to the collective bargaining agreement, plaintiffs receive an Active
- Shooter/Hostile Event Response (ASHER) stipend.
- Defendants do not include the ASHER stipend in bargaining unit members’ contractual base rate of pay for purposes of determining the overtime pay rate.
- In determining the hours worked by an employee, the Defendants have regularly undercounted those hours in determining whether and employee has reached the threshold for overtime pay under Section 207(k).
- Plaintiffs normally work 24-hour shifts.
- Although Plaintiffs are paid for only 21 hours per shift, they actually work 24 hours per shift.
- The Defendants only count 21 hours per shift as “hours worked” for purposes of determining whether an employee has reached the Section 207(k) threshold.
- Plaintiffs are regularly permitted to engage in “swaps,” in which one employee agrees to work a shift assigned to another employee in return for that second employee agreeing to work the first employee’s shift.
- Pursuant to 29 U.S.C. § 207(p)(3) and 29 CFR § 553.31, public employees are permitted to engage in such substitutions as long as the employer credits each employee for the hours they were originally scheduled to work, not the hours they actually worked.
- The Defendants have failed to consistently credit employees who have swapped shifts with the hours they were originally scheduled to work in determining “hours worked” for purposes of the FLSA’s overtime threshold.
- The Defendants have also undercounted employee hours worked by improperly limiting the types of overtime it included in total hours worked for purposes of determining whether an employee has reached the Section 207(k) threshold.
- On one or more occasions, the Defendants have failed to certify the employees’ hours worked on a particular day, resulting in undercounting of hours worked.
- By way of example, on December 26, 2020, the Defendants failed to certify the employees’ hours worked.
- This error resulted in a failure to count any hours worked by employees on that day for purposes of determining hours worked in reaching the Section 207(k) threshold.
The complaint goes on to allege that deputy chiefs are misclassified as exempt executives and not paid overtime. However, that claim is likely to create a problem for the class action status of the case. In order for a court to allow a class action suit to move forward, the court must certify that the proposed class has a community of interest, and that the named plaintiffs are able to adequately represent the class.
While the two named lieutenants certainly have a shared community of interests with other officers and firefighters who are hourly (non-exempt) employees to address the regular rate and hours-worked issues, it is hard to understand how they have the requisite community of interests with the deputy chiefs. The executive exemption issue is truly different from the other issues. Bringing forth those claims would intuitively require the involvement of at least one deputy chief to have standing, and will likely (at a minimum) require testimony from the deputy chiefs as to their job duties. Perhaps one or more of the deputy chiefs will join the suit, in which case a separate class would likely be appropriate.
Here is a copy of the complaint: